In 2004, Jeremy Jaynes was the first person to receive a felony conviction in Virginia for sending Spam. He got nine years in jail. His case has made its way through the state court system, losing all the way; and now in a closely divided decision, The Virginia Supreme Court has ruled that the only Spam Jaynes will be allowed to enjoy is in the prison cafeteria.
Virginia's law prohibits sending unsolicited bulk e-mail by fraudulent means, such as changing the header or routing information to prevent recipients from contacting or determining the identity of the sender.
The decision against Jaynes was not unanimous. The Virginia Supreme Court ruled 4-3 against Jaynes. Justice Elizabeth Lacy wrote in a dissent that the law is "unconstitutionally overbroad on its face because it prohibits the anonymous transmission of all unsolicited bulk e-mail, including those containing political, religious or other speech protected by the First Amendment to the United States Constitution."
It's possible that such a case might make it to the Federal Supreme Court someday over the free speech issue, but it's unlikely that spammers are going to be let off the hook. Almost all Spam is masquerading in some way to get past your filters. You have the right to yell FIRE! in a crowded theater if the theater is actually on fire. You're not allowed to do it to get people out in the lobby to look at your snack bar.